Code Enforcement Officer’s Right to Enter Property to Inspect for Code Violations Challenged

Title 30-A § 4452 allows code enforcement officers (CEOs) and other local officials who are specifically tasked with enforcing local ordinances the right to go on a potential violator’s property to determine if violations exist. The statute requires permission from the property owner if a local official wishes to inspect inside a building, but specifically states that such an entry onto property under the authority of the statute is not a trespass. Pursuant to the Fourth Amendment, however, there is a question about inspecting the curtilage, being the area directly around someone’s home. Although there is no Maine case law directly on point, a local official should not enter onto property closely in the vicinity of the home without permission.

The bigger question is what should happen when permission to enter property is refused by the property owner even though the local official has the right to go onto the property under the law.

In a recent case that we handled for a Central Maine town, there was a dispute between the local official and the property owner as to whether the CEO was allowed to enter onto the property, although not in the vicinity of a home. When the CEO and the Town Manager arrived for a previously noticed inspection, the property owner called the police and then kept repeatedly jumping in front of the town vehicle when the officials tried to leave. After consultation with the District Attorney, the Maine State Police served criminal trespass orders on the CEO and the Town Manager.

Additionally, by failing to state in his pleadings that the parties allegedly harassing him were town officials, who were at his property on official town business, the property owner was able to obtain a Protection from Harassment Order in District Court against the town officials. 

As the town attorneys, we were able to convince the District Attorney to drop the criminal trespass orders with the agreement that the town would not go back onto that particular piece of property without an administrative consent warrant. The District Attorney was unaware of the statute and thought that the right thing was being done to prevent violence. It was necessary to file motions to dissolve the temporary orders and dismiss the harassment cases in District Court. The cases were dismissed without hearing.

The caveat to broad inspection authority under the statute is that, while town officials have the right to enter onto property to inspect for violations, they should be cautious about exercising this right, and would be wise not to insist on entrance onto property if the property owner objects.

Maine Court Reiterates That Private Persons Do Not Have Standing to Enforce Land Use Ordinances

The Maine Superior Court recently issued a decision reiterating that only municipalities have the authority to enforce land use regulations. The decision is a reminder that private persons are not entitled to sue for enforcement of a land use ordinance and that, if they do, any such action may be dismissed.

At issue in Emanuel v. Town of Bristol was the use of a refrigerated trailer at a lobster wharf, which several nearby residents objected to because the trailer was loud and ran at unpredictable intervals. After the wharf owner did not respond to the residents’ concerns, the residents contacted the town with their objections, claiming that the trailer was being used without prior review or approval by the Town’s planning board or code enforcement officer (CEO). The residents requested that the Town require the wharf to obtain a planning board permit. In response, the Town’s CEO explained the trailer was not a “structure” requiring a permit and that, because there was no consequent violation of the shoreland zoning ordinance (SZO), the Town would not issue a notice of violation. The residents appealed the Town’s decision to the Superior Court.

On appeal, the Superior Court pointed to two previous decisions from Maine’s Law Court, both of which found that private persons did not have standing to initiate enforcement proceedings against their neighbors. Based on these decisions, as well as the language of the SZO, the Superior Court found that it is the duty of the CEO, not private persons, to enforce the SZO and to investigate complaints of alleged violations. And, if the CEO’s actions do not result in an abatement of the violation, then it is the municipal officers of the Town who have the authority to initiate legal action – not private persons.